Right-to-work refusals impacted by federal labour code changes

Key amendments to the Canada Labour Code came into effect on Oct. 31. The amendments change the definition of "danger" and impose greater obligations for workplace parties when an employee exercises the right to refuse dangerous work.

Prior to the most recent change, the code defined danger as "any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person
exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system."

The federal government determined this definition was unclear and a source of confusion. In the last 10 years, about 80 per cent of work refusals investigated by the Labour Program resulted in findings of "no danger." Its response was to streamline the definition of danger to "any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered."

Key to the revision was the removal of the words "existing or potential" and "current or future" that had been used to describe the nature of the hazard, condition or activity constituting a danger.

The revision has also removed wording that included risks of future harm arising from the hazard, condition or activity.

This may mean an employee’s right to refuse work has been restricted so it does not include the right to refuse on the basis of anticipated or potential risk. This could have implications for situations that may present a risk to future health, such as the exposure to hazardous substances.

Enhanced responsibilities for work refusals

The amendments introduced significant changes to the procedure for responding to a work refusal. They place a greater emphasis on the internal responsibility system by removing the role of a health and safety officer and mandating two workplace investigations of a work refusal be performed before referring the matter to the minister of labour (as represented by the Labour Program).

When presented with a work refusal, the employer is required to conduct an immediate investigation in the presence of the refusing employee and prepare a written report. The report should include the basis for the work refusal, a description of the employer’s investigation, the factors considered and the reason for the employer’s decision that there is a danger or not — or the determination that the work refusal is not permitted under the Canada Labour Code because it puts the life, health or safety of another person directly in danger or the alleged danger is a normal condition of employment.

If the work refusal is not resolved following the employer’s investigation, an investigation by the joint health and safety committee (JHSC) or representative must be conducted. An investigation by the committee must involve one representative from management and one who represents employees, and a written report must be produced.

The JHSC investigation is to be provided to the employer and, notably, the employer can provide supplemental information to the investigator. If this second investigation does not resolve the work refusal, the matter is referred to the Labour Program.

The referral to the minister highlights another important change to the code. Prior to the Oct. 31 amendments, all work refusals were to be investigated "without delay," meaning there was no discretion to decide not to investigate. However, the amendments now provide discretion such that the Labour Program may decide not to investigate a work refusal if it can be effectively dealt with under another act, or where the refusal is trivial, frivolous, vexatious or made in bad faith. If the Labour Program does not investigate the refusal, the employee cannot continue the work refusal and must return to work.

Following its assessment of the matter, the Labour Program will resolve the work refusal with a written report to the employer, the refusing worker and the JHSC. If the assessment results in a direction being issued to the employer, then the employer, employee or union may appeal that decision within 30 days.

If the assessment of the Labour Program is that no danger exists or the work refusal is not permitted, an employee has 10 days to appeal that decision. If the Labour Program does not investigate the work refusal, the refusing employee may seek judicial review of that decision within 30 days.

In light of these amendments to the code, federally regulated employers should be reviewing work refusal programs for consistency with the revised definition of "danger" and ensure those who could be involved in responding to a work refusal have been trained on the changes to the code, including the updated definition of "danger" and procedural requirements for the internal investigations and reports.

Employers should develop template or precedent report forms and ensure they are made available to supervisors, managers and the JHSC.